Supreme Court of the United States

Bashington, B.C. 20543

CHAMBERS OF May 29, 9024
JUSTICE SAMUEL A. ALITO, JR.

Hon. Richard J. Durbin

Hon. Sheldon Whitehouse
United States Senate
Washington, D. C. 20510

Dear Senators Durbin and Whitehouse:

This is in response to your letter of May 238 to the Chief Justice requesting that
he take steps to ensure that I recuse in Trump v. United States, No. 23-939, and any
other cases “related to the 2020 presidential election” or “the January 6th attack on
the Capitol.”1 As the Court has pointed out, “[iJndividual Justices, rather than the
Court, decide recusal issues.”2 I am therefore responding directly to your letter. In
it, you claim that two incidents involving the flying of flags created an appearance of
impropriety that requires my recusal.

The applicable provision of our Code of Conduct states as follows:

“B. DISQUALIFICATION.

(1) A Justice is presumed impartial and has an obligation to sit

unless disqualified.

(2) A Justice should disqualify himself or herself in a proceeding

in which the Justices impartiality might reasonably be
questioned, that is, where an unbiased and reasonable person
who is aware of all relevant circumstances would doubt that the
Justice could fairly discharge his or her duties.” Code of Conduct
for Justices of the Supreme Court of the United States, Canon
3(B)(1)-(2).
The two incidents you cite do not meet the conditions for recusal set out in
(B)(2), and I therefore have an obligation to sit under (B)(1).

The first incident cited in your letter concerns the flying of an upside-down
American flag outside the house in Virginia where my wife and I reside. In

1 Letter from R. Durbin & S. Whitehouse to C. J. Roberts (May 23, 2024).

2 Attachment to letter from THE CHIEF JUSTICE to R. Durbin (Apr. 25, 2023); Commentary to Code of
Conduct for Justices of the Supreme Court of the United States 11 (Nov. 13, 2023).
considering whether this event requires recusal, an unbiased and reasonable person
would take into account the following facts. As I have stated publicly, I had nothing
whatsoever to do with the flying of that flag. I was not even aware of the upside-
down flag until it was called to my attention. As soon as I saw it, I asked my wife to
take it down, but for several days, she refused.

My wife and I own our Virginia home jointly. She therefore has the legal right
to use the property as she sees fit, and there were no additional steps that I could
have taken to have the flag taken down more promptly.

My wife’s reasons for flying the flag are not relevant for present purposes, but
I note that she was greatly distressed at the time due, in large part, to a very nasty
neighborhood dispute in which I had no involvement. A house on the street displayed
a sign attacking her personally, and a man who was living in the house at the time
trailed her all the way down the street and berated her in my presence using foul
language, including what I regard as the vilest epithet that can be addressed to a
woman.
My wife is a private citizen, and she possesses the same First Amendment
rights as every other American. She makes her own decisions, and I have always
respected her right to do so. She has made many sacrifices to accommodate my
service on the Supreme Court, including the insult of having to endure numerous,
loud, obscene, and personally insulting protests in front of our home that continue to
this day and now threaten to escalate.

I am confident that a reasonable person who is not motivated by political or

ideological considerations or a desire to affect the outcome of Supreme Court cases
would conclude that the events recounted above do not meet the applicable standard
for recusal. I am therefore required to reject your request.

The second incident concerns a flag bearing the legend “An Appeal to Heaven”
that flew in the backyard of our vacation home in the summer of 2023. I recall that
my wife did fly that flag for some period of time, but I do not remember how long it
flew. And what is most relevant here, I had no involvement in the decision to fly that
flag.

My wife is fond of flying flags. Iam not. My wife was solely responsible for
having flagpoles put up at our residence and our vacation home and has flown a wide
variety of flags over the years. In addition to the American flag, she has flown other
patriotic flags (including a favorite flag thanking veterans), college flags, flags
supporting sports teams, state and local flags, flags of nations from which the
ancestors of family members came, flags of places we have visited, seasonal flags, and
religious flags. I was not familiar with the “Appeal to Heaven” flag when my wife
flew it. She may have mentioned that it dates back to the American Revolution, and
I assumed she was flying it to express a religious and patriotic message. I was not
aware of any connection between this historic flag and the “Stop the Steal Movement,”
and neither was my wife. She did not fly it to associate herself with that or any other
group, and the use of an old historic flag by a new group does not necessarily drain
that flag of all other meanings.

As I said in reference to the other flag event, my wife is an independently

minded private citizen. She makes her own decisions, and I honor her right to do so.
Our vacation home was purchased with money she inherited from her parents and is
titled in her name. It is a place, away from Washington, where she should be able to
relax.

A reasonable person who is not motivated by political or ideological

considerations or a desire to affect the outcome of Supreme Court cases would
conclude that this event does not meet the applicable standard for recusal. I am
therefore duty-bound to reject your recusal request.

Sincerely yours,

CR EEKMY